Public Bill Committee

[Sir Nicholas Winterton in the Chair]

Nicholas Winterton: I welcome Members to this afternoons sitting and I am confident that steady, constructive progress will continue to be made during the next four hours.

Clause 39

Exceptions to application of this Part

Amendment proposed (this day): 43, in clause 39, page 29, line 7, after person, insert
who came to the UK under the Highly Skilled Migrants Programme.(Damian Green.)

Nicholas Winterton: I remind the Committee that with this it will be convenient to discuss amendment 44, in clause 39, page 29, line 9, after person, insert
who came to the UK under the Highly Skilled Migrants Programme.

Gwyn Prosser: Before we adjourned, we were talking about what I described as the intrinsic unfairness of using legislation and rule changes retrospectively, particularly when it affects individuals real lives. We were discussing the text on the back of work cards and whether it gave people, no matter what category they came under, reasonable expectationnot expectation of a natural, God-given right to indefinite leave to remain or to citizenship, but whether the spirit of the text led them to believe that they would be able to do so.
One issue that we did not touch on was that of a spouse joining their partner. On the website and in letters from the Home Office, there are clear statements that a person is entitled to apply for ILR if they are still in the country after two years. The phrase apply for ILR is used, and experience shows us that that would be the case in most instances. It is pretty far-fetched to believe that there is no expectation that spouses or partners would be unable to remain. Similarly on the website, there is a phrase that says in effect that, if a person is still married when their temporary period to remain expires, they are entitled to apply to remain in the country.
I will not detain the Committee any longer except to say that we do our best not to apply laws and rules retrospectively. I do not want to introduce a sour note, but let us imagine that the new rules that the House is now considering with regard to MPs allowances and expenses were applied retrospectively. It would give us all a great deal to think about.

Phil Woolas: It is good to be starting the debate so soon after lunch, under these new modern hours. I am not sure why I voted for them, but I can see the point of view of the Minister at the time.
I will try to be helpful and answer the questions on specific points, and then explain the approach we are taking. Before I do that, it is incumbent on me to bring it to your attention, Sir Nicholas, and that of members of the Committee that I have placed an updated impact assessment of the Bill in the Vote Office this afternoon. Quite rightly, it is the Governments obligation to give the House information that is as up-to-date as possible. There are some revised figures in the Governments estimate of the implication of the Bill for benefits and I draw that to the attention of the Committee out of courtesy. Members will want to be aware of it.

Nicholas Winterton: Order. Seeking to be helpful to the Committee, may I ask the Minister whether there is a copy of the document in the room?

Phil Woolas: One copy is in the room because I have it. I will make arrangements for others to be sent. I am trying to be helpful. There is no substantial policy change in the document; there are some up-to-date figures that will inform the House on Report. We will put some reports on the table.
I shall try to answer some of the specific questions that were asked in what has been an interesting and important debate on the amendments. I shall choose my words carefully because others outside the room will read and interpret them. I shall answer the general principle points raised by my hon. Friend the Member for Dover, but the key point is about work permit conditions. It has been tested in the court, as I said before, under the Ooi case. Mr. Ooi was a gentleman of Chinese citizenship. It was stated that a condition of the work permit was that the person could, within four years, apply for leave to remain. The court, in line with our policy, found that was not an explicit and unequivocal representation creating a legitimate expectation. My hon. Friend was talking about the expectation of applying, not the expectation of necessarily receiving. It is an important point, because there is a clear difference between temporary admission for a purpose and indefinite leave to remain.
The hon. Member for Ashford helpfully read out the letter from Lord Brett, following the debate in the Lords. It duplicated the comments the noble Lord had made in the Lords about clause 37. The critical change between what was reported at column 541 of House of Lords Hansard of 2 March 2009 and the subsequent letter was the point relating to migrants with ILR when the earned citizenship clauses under the Bill are commenced. They will be able to apply to naturalise under existing section 6 and schedule 1 of the British Nationality Act 1981, provided that they apply within a set period after the clauses have been commenced. Lord Brett said that, although we have not yet confirmed the period, it is likely to be for 18 months after the clauses are commenced.
Following the debate in the Lords, I looked at that point and made the suggested change to 24 months not 18 months. The hon. Member for Ashford read out a reference to 24 months. My suggestion is dependent, of course, on the House agreeing a commencement date of December next year. That would meet the specific point that has been made.
I come now to the more general points. The hon. Member for Ashford referred to policy and what we were trying to achieve. He made an important statement in respect of Conservative policy. I think that he said it was desirable, and that he agreed with the Government, that the indefinite leave to remain concept should move on, and that we should have a system of temporary leave to remain and moving into citizenship. He is right to suggest thatperhaps for reasons of dual citizenshippeople might not want to have to choose. That is recognised, but it is important that people note the statement that has been made.
As for what we are trying to do, our policy is aimed at helping the migrant who wishes to become a citizen of our country to integrate, to better understand our society and the specific community and to better be able to contribute. That is based on the belief that migrants want to contribute and that we should provide a route for them to do that. One can see earned citizenship in a punitive sense as a hurdle that has been put in front of people or as a platform on which to help people build a life. We believe that it is rightI welcome the consensus on this pointthat those who wish to become citizens of our country should have an adherence to the commitment to the rule of law and to the English language, and an understanding of our democratic system. During the debate we shall look at how we can define that. The strategy is to try to break the automatic link that is in many peoples minds, and in some cases in statute, between temporary stay and automatic right to citizenship, and to help the migrant to integrate.

Paul Rowen: Does the Minister not accept that the link already exists? Indefinite leave to remain does not grant one British citizenship. What the Bill seeks to doin the parts and sections that we supportis to provide a much clearer route to what has to be done for British citizenship. But the change that is being proposed will make the route longerthe point the hon. Member for Dover was making. Under certain categories, someone marrying a British citizen and coming to live in this country will be faced with a longer time period. One can accept the principle of a route, but for those who are already on the route, why should the time to complete it be lengthened?

Phil Woolas: The hon. Gentleman makes a good point. I shall come to the transitional arrangements, but putting them to one side for a moment, I believe that the purpose of the changes has the consensus of the Committee. What the hon. Gentleman says is quite right. I know that he agrees with the other side of that coin, which is that we have created in this country a category of people who have indefinite leave to remain that has no end point, necessarily, at citizenship or otherwise. That is what the provision is addressing.
However, let me turn to the meat of the amendments and the clause, and try to help the Committee find a way forward. The point has been made on both sides of the House that we should not move the goal posts and that it is unfair to legislate retrospectively. Where that expectation is legitimate, I absolutely concur with that point of view. Indeed, the debate in the Lords and lobbying by individuals and Members of Parliament caused me to look at the practical implications of our proposals and alerted me to a potential gap in one or two areas. In particular, I have been in correspondence with a young lady from Croydon. By highlighting her circumstances she convinced me of the case.
We accepted the judgment on the highly skilled migrant programme. The Governments intention was not to punish, but to create a new system. However, the point was made in the courtthe hon. Member for Rochdale quoted from the judgment in this mornings sittingand we have put it right. There is not necessarily a read-across to other temporary routes, but there is a principle connection. My hon. Friend the Member for Dover, who knows more about these things than most, made that point as well.
The rights of people who have already been granted ILR will not be affected. The question is: how do we deal with the transition? It is a difficult and complicated question, which is why I suggested to the Committee this morning that, in light of clause 39 being inserted in the other place, and in light of the deliberations, we wish to ask the Committee to reject clause 39 stand part and take out the clause, and the amendments if they are accepted, with the commitment that we will come back with further transitional arrangement proposals. That does not mean that the Government are confusedwe have clear proposalsbut it does mean that I want to look at them afresh, particularly at the routes that I shall now explain.

Damian Green: The Minister says that he is about to explain the substance of his new proposals and that he will come back to them at a later stage. It would be regrettable if the House could not discuss the new proposals. Can he give a commitment that they will come back in a form that can be discussed by the House as well as in another place?

Phil Woolas: The hon. Gentleman is right. I can give that commitment. As this clause has been inserted in the other place, it has to go back there and, if we send it back, it has to return to us anyway. Even if it did not come back, I would want that to be so, because I want the Governments intention to be understood, for the reasons given by my hon. Friend the Member for Dover and by the Members for Rochdale and for Ashford. This is important; we are talking about peoples lives and their contributions to our country.
As I have already said, clause 39 was inserted following the debate on Report in the House of Lords. I have already quoted from that clause, which intends to set out how the earned citizen provisions impact on certain groups of migrants. The effect of that is to set down transitional arrangements that the Government should apply, the clause argues, when the earned citizenship provisions are implemented.
On Third Reading, my noble Friend Lord Brett made it clear, on behalf of the Government, that we would return to this issue. The Government understand that the intention behind the clause is to allow migrants in three main groups to be able to apply for British citizenship under the existing naturalisation requirements in section 6 and schedule 1 of the British Nationality Act 1981, rather than under the new earned citizenship requirements proposed in the Bill. The Government consider that it is not appropriate to set out details of transitional arrangements in the Bill and I will explain why. Rather, such arrangements should be in the commencement order that would give effect to part 2 of the Bill. That is the right thing to do, given the level of detail needed to be set down. In addition, the clause as currently drafted, does not achieve its intended aims, which means that, even if had not reconsidered the categories, we would ask the Committee to object to the clause in its own interests, as it were. Ministers often make that point.
Let me deal with some of the detail. When the clause was debated in the other place, the Government indicated that we would return to this matter. Committee members will no doubt have noticed that we tabled an amendment in my name to remove the clause from the Bill. We have previously argued that there is no reason why transitional arrangements need to be set out in the Bill. I have outlined my reasons for that, which remain valid. There is a good argument for the commencement order giving effect to part 2 of the Bill being the proper place to set out transitional arrangements. The provisions need to be detailed and will be relevant only for a certain period. Setting out the provisions in a commencement order also gives us scope to update them, should the need arise. However, there are concerns about our intentions. I understand the desire for clarity and certainty that has been mentioned by hon. Members and constituents in recent weeks. Our intention is and has always been to make transitional arrangements that are fair and reasonable, as my hon. Friend the Member for Dover said.
Just to reassure Committee members that I mean what I say and say what I mean, it is my duty as Minister to make Public Bill Committees aware of technical deficiencies, where I have been advised to do so by parliamentary counsel and my officials. Part 2 of the Bill is concerned solely with the acquisition of British citizenship and it cannot in itself affect applications for indefinite leave to remain. The hon. Member for Rochdale made that point and I am just emphasising it. The Bill is about citizenship and it cannot affect applications for indefinite leave to remain, which are made at an earlier stage in the process and are decided under immigration rules. I am asking the Committee to recognise that point by removing the clause.

Paul Rowen: I accept the Ministers point, but the argument is not about those who have indefinite leave to remain, but about spouses who have been given temporary leave to remain for two years and have an expectation that, at the end of those two years, they will be able to apply for leave to remain. If he can assure us that that expectation is not going to be affected, I will have no problem with what he proposes.

Phil Woolas: The hon. Gentleman will, I am sure, be satisfied in a moment. Let me set out the Governments proposed transitional arrangements for migrants who have completed the temporary stage of their journey at the point of the legislations commencement.
The arrangements broadly reflect the intention behind 39(b). First, any application for naturalisation that is received by the UK Border Agency before the earned citizenship provisions are implemented, and which remains undecided at that point, will be considered under the existing arrangements set out in the British Nationality Act 1981.
Secondly, migrants with pending applications for ILR that have been submitted, but not decided, before the immigration rules are changed, following the commencement of the earned citizenship provisions, will have their applications considered under the existing rules. Members will know that that is often a point in immigration law.

Damian Green: My memory of the ILR application laws, off the top of my head, is that people are all but forbidden from applying until they are within 28 days of the end of their temporary leave to remain. Indeed, they are told specifically that an application made before that period may well be turned down, or something like that. It sounds as though this concession will affect a very small number of people.

Phil Woolas: This measure is a building block in the transitional arrangements, so I hope that the hon. Gentleman will let me outline the other building blocks, and we can then see whether his point is made.
Those applicants will have two years from the date of commencement to apply for citizenship under the existing arrangements.
Migrants who already have ILR will be deemed to have permanent residence leave, as is made clear in clause 50(3). Again, those migrants will have two years from the date of commencement to apply for citizenship under the existing naturalisation arrangements.
Concerns have been expressed about the position of those who are nearing the end of their temporary leave and who, under the current rules, would be eligible to apply for ILR. Clause 39(a) attempts to address those concerns. I assure hon. Members that we have given, and continue to give, thought to the transitional arrangements for that group. Our dilemma is how to devise arrangements that are rational, proportional and reasonable, but that also minimise the operational complexity and costliness of running two systems concurrently. We do not believe that migrants, as a matter of course, have a legitimate expectation that we will not change our policy. However, we would like to give the matter further consideration and return to it at a later stage.
Amendments 43 and 44 would narrow the clauses scope, as the hon. Member for Rochdale has argued, although I am not sure that that is their aim. I think they were meant to make specific points about the transitional arrangements for the highly skilled migrant programme. They would apply the transitional arrangements to a very limited group. People who were here with another form of leave and then transferred to HSMP would not be caught.
The courts have ordered us to protect the position of certain HSMP migrants, and if the amendments are intended to protect those groups, we agree with their spirit. The High Court has held that all HSMP migrants who were admitted before 7 November 2006 are entitled to the benefits of the scheme, including eligibility for ILR after a qualifying period of four years. If there are migrants for whom a legitimate expectation was created by HSMP, who have not yet moved through the system, we will give effect to the courts ruling and deal with their applications under the current system.
I hope that the Committee will accept our good intent on the HSMP route, and my argument that there is not in all cases in the other routes a legitimate expectation of ILR being granted but rather the right to apply. My proposals on the timings for transitional arrangements for the three routes through temporary leaveparticularly the hon. Member for Rochdales point on the spousal routewill be subject to the detailed proposals that we will bring back to the House and the other place in order to meet the principle, although not excepting automaticity, that has been expressed on both sides of the House. I refer the Committee to the words quoted by the hon. Member for Ashford from the letter that Lord Brett issued subsequent to the debate in the other place.
The transitional arrangements that we will put in place need to take on board the tests of reasonableness and fairness without moving the goalposts for the legitimate expectation of the person with temporary leave. The intention of the person who has applied for temporary leave is, of course, a different point that cannot be covered by statute.
On that basis, and with the guarantee that I have made to the House, I ask the Committee to consider turning down clause 39 if there is a vote so that we can have a detailed look at the transitional arrangements. I accept the spirit of the two amendments tabled by the hon. Member for Ashford; in any event, we are applying through guidance the court ruling on HSMP.

Paul Rowen: The Minister is being very generous with his time. I accept the point that he is making, but I seek from him clarification as to the intended timetable, given that protection is removed from the Bill if we remove clause 39. Is the intention that regulations will be published while the Bill is still making its passage through both Houses? Will there be consultation on them so that we can produce amendments if necessary?

Phil Woolas: I am choosing my words carefully to help the Committee and not in any way to mislead it. It is my intention that there shall be a new clause 39 or equivalent so that the House can agree the principle. The regulations that flow from it would be introduced after the Bill has completed its passage so that the House can determine the principle and in order to meet my suggestion, which has been the practice of Governments of all persuasions, to look at the particulars through the commencement order and the regulations.
The difficulty is that in making transitional arrangements for people who have ILR within a period of time, it is difficult to find comparisons for ILRby definition, one could say that a transitional arrangement could be here ever after. But, of course, we have to provide reasonable expectation and fairness for the people who have ILR now, and to ensure that the new system does not present greater difficulties for them than would otherwise have been the case had the system not been changed. I believe that that is the point that the hon. Gentleman is making. I understand him, he and I being neighbours in Gods own countyif I can put it that way. [Interruption.] I hope that I have explained myself, and that I have not just lost the vote with that last phrase. I prompted something, I know not what.

Adam Holloway: I have been out of the room briefly, so the Minister may have covered this. Does he consider that applying changes to immigration rules to migrants who are already on the path towards settlement is not unlawful?

Phil Woolas: Do I consider that not to be unlawful?

Adam Holloway: Does he consider it to be unlawful?

Phil Woolas: I am not going to answer that question because in my experience, a Minister who claims that something is lawful or unlawful without sound and strong advice, ends up costing the taxpayer a lot of money in legal fees.
I understand the principle behind what the hon. Gentleman has said. I do not believe in retrospective legislation, and I do not believe that Members allowances should be changed during the course of a Parliament. That is retrospective. Where there is retrospectivity, as there is in a more liberal way in later clauses to do with children, that is reasonable. However, I do not agree with it the other way round. The Whip is urging me to get off the issue of Members allowances and get on to public expenditure. I ask the Committee to accept my point of view.
Damian Greenrose

Nicholas Winterton: Before I call the hon. Member for Ashford, I say to the Committee that as far as I am concerned, the Minister has replied to the debate on amendments 43 and 44. He has referred to a certain amendment that I did not select, as I believed that it was more appropriate for a stand part debate. However, he has explained his position. Although I am happy to offer a stand part debate, if the Committee wishes it, the Minister has clearly established his position and, from his point of view, a stand part debate would be a repetition of what he has already said. However, I am in the hands of the Committee on this matter, and if it is the Committees wish to have a stand part debate, I am happy to permit one. I call the hon. Member for Ashford to comment further on his amendment.

Damian Green: Thank you, Sir Nicholas, I will respond to that. In my view, we have given this matter a full airing. It is an extremely important issue, but there is not necessarily much more to be gained from a stand part debate. Presumably, the Minister has indicated that he would like a vote on the clause stand part, as he wants to vote against it. It is not for me to move the deletion of a clause from a Bill. That would be an unusual constitutional innovation [Interruption.] I am happy to adopt it. We could apply it to various clauses in the Bill.

Nicholas Winterton: Order. May I help the Committee further? Clearly, one of my duties when we have finished debating the amendments is to put the question that the clause stand part of the Bill. If there is a negative answer, the clause does not stand part of the Bill. That is pretty clear.

Damian Green: It is extremely lucid and clear, Sir Nicholas. The Minister has made a potentially important concessionI think that that is how he described it. He has clearly listened to the wave of outrage that has come not only from another place but from many bodies and individuals outside this place. He has given the Committee an assurance that he will come back with something better and more acceptable in the future. We accept that his assurance is made in good faith.
I would like to check with the Minister that the principles on which his new clause will be adopted are first, that there is a significant difference between temporary and indefinite leave to remain, and that that distinction will remain. Secondly, does he agree that those who have come here under the highly skilled migrants programme are, partly because of the legal situation, in a different position to those who have come by other routes? Howeverthis is a very important pointthose distinctions should not necessarily apply to those who have already been in the country for some time, even with temporary leave to remain, and who have a reasonable expectation that they were on a path to citizenship.
The purpose of my amendment, and of those moved by my noble Friends in another place, was to say that those who are coming to the end of a period of temporary leave to remain will have developed that reasonable expectation. They in particular deserve the protection of the House against what they seenot unreasonablyas retrospective legislation. I agree with the Minister that the principle of retrospection is normally bad in legislation.
I am trying to draw out the distinctions, because I think they are important. As the Minister has said, the Government will propose a new clause, but it sounds likely that the regulations, which will inevitably contain important details, will not be seen by either House until the clause has been passed. By that time, of course, if we discover that the regulations make the provision unacceptable, it will be too late, so to some extent we are being asked to buy a pig in a poke. Will he establish the principles as clearly as possible, so that we can return to the matter in later debate? In the expectation that the Minister will be able to satisfy the Committee on those points, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 disagreed to.

Clause 40

Application requirements: general

Question proposed, That the clause stand part of the Bill.

Damian Green: I want to ask the Minister some brief questions about clause 40, which deals with the application requirements for citizenship. I shall focus on the categories of people to which the requirements will apply.
Under subsection (11), in order to qualify toward naturalisation, the time spent in this country has to be spent while resident on a certain type of visa or entitlement, including ILR, Commonwealth right of abode or European economic area entitlement. Time spent in the UK on a visa that is limited as to duration will count only if leave is granted for a purpose set out in the rules made by the Secretary of State, so it is impossible to know to which categories of people they will apply. There may well be large numbers of people on certain visas who do not fall within the category. I hope that the Minister can clear up who and how many people will be affected.
Clause 40 also introduces amendments to the number of days that a person applying for naturalisation will have to have been present in the UK for each year of their qualifying period. As things stand, a person intending to qualify for citizenship can be absent from the UK for up to 540 days during their qualifying period and for no more than 90 days during the final year of the period. Barring the final year of qualification, there are no limits on the duration and timing of other absences, so the person seeking to qualify for citizenship can spend time away from the UK as and when they need or wish, within the limit.
Clause 40 seeks to impose stricter rules on absence by requiring that a person must not be absent from the UK for longer than 90 days in each qualifying year. In practice, that might mean that a person who consistently remained in the UK for the first two years of their qualifying period but was absent for more than 90 days in their third year, perhaps as the result of a genuine family emergency or work commitment, would thereby jeopardise their application for citizenship. The change imposes a much heavier restriction on freedom of movement and might unfairly discriminate, particularly against those who have a family emergency. Can the Minister provide some explanation?
The clause also highlights the desirability of having the secondary legislation flowing from clauses explained and made visible to the House while we are considering the underlying clauses. The regulations flowing from the clause might have dramatically adverse impacts on people. The Minister may well have a perfectly good explanation, but at the moment it is impossible for the Committee to take an intelligent view, because we simply cannot know the facts. At the very least, I hope that the Minister can provide some kind of explanation at this stage.

Tom Brake: I want to raise a number of points with the Minister. I know that he is assiduous and will have noted that we tabled some amendmentsamendments 52, 49 and 50to the clause. He will have done his homework; he will have the notes in front of him; and he will be able to respond to my points.
The first point is in relation to amendment 49. I shall read from an Immigration Law Practitioners Association briefing, which has helpfully been provided. Those who change their status but remain legally in the UK will be knocked back as a result of the clause. That is a matter of concern:
For example a worker who ceased to work and did a full time degree (for example a Masters of Business Administration)
and then went back to their original status, would previously have been able to aggregate the two periods as a contributory period, but now they will no longer be able to do so. That is my understanding. An explanation as to why that should be the case is required. If someone is undertaking further studies, which eventually would be of benefit to UK plc, it seems regrettable to penalise them for doing that. That is one point that I hope the Minister can respond to.
Another point concerns the effect of the probationary citizenship stage on refugees and those granted humanitarian protection. Might there be circumstances in which it would not be appropriate for refugeesperhaps as a result of something that they have experienced in their country of origin, or for whatever reasonto undertake voluntary work as part of their probationary citizenship period? Can the Minister explain the extent to which flexibility will be provided in such circumstances? We can all imagine a scenario in which someone having to undertake that active citizenship role might not be appropriate.
Another query that I hope that the Minister can respond to concerns clarifying the position on fees for refugees. My understanding is that refugees do not currently have to pay fees, but if they want to achieve citizenship at the earliest opportunity, they would seem be liable for some fairly substantial fees. I suspect that refugees may be in the worst position possible for settling such fees. I hope that the Minister can provide some clarification.
My final point has been referred to by the hon. Member for Ashford, which is the question of an excess of 90 days. Our amendment 52 tried to substitute what I believe is the current arrangement.

Nicholas Winterton: Order. The hon. Gentleman is being pretty clever. His amendments were not selected, because they were starredtabled too late to be selected for todays sitting. If he fails to mention the amendment number, I am quite happy for him to refer to all such matters in the clause stand part debate.

Tom Brake: Thank you, Sir Nicholas. Consider reference to any amendment numbers expunged from the record. I would hate not to give the Minister an opportunity to read out the note that his officials have helpfully provided him with on what I shall not call amendments, but points of debate.
I hope that the Minister will be able to provide some reassurances, because the changes proposed in the clause will have substantial impacts on some of the most vulnerable people seeking citizenship. It could impose severe penalties on them, in a way that hopefully the Minister accepts is not appropriate for people who soon will bewe hopecitizens of the United Kingdom and wishing to make a substantial contribution. We should want to welcome them as part of that process.

David Anderson: I assure you that I have absolutely no intention of mentioning any amendments, starred or otherwise, Sir Nicholas.
I seek clarity from the Minister on clause 40(2)(e) and the meaning of continuous employment, because there is a huge question about the meaning of that phrase. A trade union asked me to ask this specific question: what would happen to people who are working in a workplace who are being harassed, bullied and exploited while they are here on work permits? If they chose to walk away from exploitation rather than remain in that employment, would they rule themselves out of the opportunity to become naturalised citizens?
The concern is that there is only one legal definition of continuous employment. It is spelt out in the Employment Rights Act 1996, which statesvery clearly, for the law of this landthat continuous employment means employment with the same employer without a break. Because there is no other definition in law, if people challenge a decision to refuse naturalisation, the reality is that that definition will be used. Is that the case? I understand that the question was raised in the Lords, and that the Minister there said that in certain circumstances individuals could change employers in occupation periods. If that is the case, will the Minister expand on it?
People are concerned about when such a situation might come about. Some time ago, the case of the cockle pickers in Morecambe bay led to the welcome Gangmasters (Licensing) Act 2004. As recently as yesterday, however, a 10-minute Bill was introduced on the Floor of the House by my hon. Friend the Member for Paisley and Renfrewshire, North (Jim Sheridan), which would update the 2004 Act to include construction workers, because of the problems that such workers are facing. Many people who come to work in construction in this country from abroad may, in the long term, become eligible for naturalisation. They are the sort of people we needas we said earlier, they are highly skilled peopleand we want to attract them. We need to be clear that they will not be exploited.
There are lots of problems with temporary workers and the agency workers directive, and people are in danger of being exploited in the real world of work. I had some experience of that when I was a Unison trade union official. A group of degree-level Filipino nurses were working over here on a contract and living four to a room. They were being charged transport charges for using a bike to ride to work. They were under pressure because there was a bond on them: if they walked away from their work, not only would they be liable to pay the money back in this country, but they would be liable to pay the money back to contractors back home. My union got them out of that workplace and got them work in the health service, where they were treated properly. If the Bill goes through as it stands, most people would not want to choose the alternative that my union made possible for those nurses. People could be forced to stay in such workplaces if they want to become naturalised citizens. It is a real issue.
Nobody is unaware what is happening in the world now. There is massive uncertainty because of the recession and there are questions about when recovery will start. In the interval between the end of this mornings Committees sitting and the start of this sitting, I spent three hours on the phone trying to deal with a case that has developed in my constituency as a direct result of the closure of Dairy Farmers of Britain. We are trying to stop the closure of a dairy in my constituency. We know what the situation is, but we need to be clear that we are doing everything we can to ensure we do not make life even harder for peoplegood hard-working peoplewhom we want to stay here. As a result of circumstances totally outside their control, they might not be able to comply with the continuous employment requirement.
The Conservatives are committed to 10 per cent. cuts in public services. Many of the people we are talking aboutskilled migrant workerswill be working in the health service, education and local government. Their jobs will be under threat and they may well fall outside this provision. Will the Minister please clarify what we mean by continuous employment and calm my nerves? Let us get this right and get it sorted.

Phil Woolas: I shall reply to the points in reverse order, not least because the amendments do not exist, and because the number I have written on my notes does not tally with the ones that were submitted.

Crispin Blunt: Which do not exist.

Phil Woolas: Which do not exist.
Let me calm the nerves of my hon. Friend the Member for Blaydon. In answer to his question, we have made it clear that to qualify for citizenship, those here on the work routesin practice, tiers 1 and 2 of the points-based systemmust show that they have contributed economically and have paid taxes. If they do not meet those two requirements, they will not normally qualify for citizenship and, would therefore be required to leave the UK. However, the majority of people here to work do precisely that. If they cease to be in employment, they have ceasedwith the caveatsto meet the key requirement of their route and so should not be allowed to progress to citizenship. I think we all agree that it would be unacceptable if migrants who have come here specifically to work were allowed to qualify for citizenship despite being economically inactive for long periods.
The continuous employment requirement is consistent with and underlines the Governments clear policy that migrants who enter by the work route are here to work and be economically active. However, let me reassure the Committee on several important issues related to that requirement.
The Bill requires those who were granted probationary citizenship for the purposes of taking employment to demonstrate only that they have remained in continuous employment. We agree that the requirement that a migrant on the work route must be in continuous employment should not be interpreted rigidly. That is why there is discretion to waive that requirement where appropriate. Continuous employment does not mean employment with one employer; we are clear that people can meet the requirement in the earned citizenship clauses if they change jobs, or types of jobs, or self-employment during the qualifying period. That will be set out in the guidance we publish on that requirement.
I shall answer the more specific points raised in the other place about domestic workers, even though my hon. Friend spoke more generally. The Government are committed to the requirements set out for naturalisation in the Bill, and the expectation is that migrants on the work route must meet all of those requirements. Discretion should not be regarded as a way to avoid the requirements. It is quite different from removing the requirements for a person who has come here to remain in employment continuously.
The Bill includes a power for the Secretary of State to treat people as meeting the continuous employment requirement even where that is not literally the case. Our view is that we should mirror the time period allowed under the points-based system for migrants to secure alternative employment. In other words, we would consider applying discretion where the total number of days of unemployment for the duration of the probationary citizen period is 60 days or less. In some circumstances, we would consider applications where the total is more than 60.
I do not wish to set out the list of those circumstances under which that discretion should be applied, as I was tempted to do. That would be counter-productive, because providing a fixed definition of discretion would mean thatby the very nature of its being fixedit would cease to be discretionary. We do not want to exclude scenarios that might arise. We are committed to considering each case individually on its own merits, just as we are committed to upholding that principle within the workings of the existing points-based system. I believe that that provides a more transparent and fair basis on which to use discretion.
The Secretary of State would treat people who lost their jobs for a short period as meeting the continuous employment requirement, even if that were not literally the case. The 60-day period is consistent with the points-based system period. To avoid the exploitation of that loopholethat is not quite the right wordby those who are not well intentioned, we wish to provide a clear framework based on the 60 days, which is taken from our definition. That will provide for discretion to meet the point that has been made. That is exemplified in our response to the situation with domestic workers, where special arrangements are in place to avoid exploitation that could take place in any case, but which is more likely in an economic downturn. The rule is strong, but it is not rigid, precisely because of the arguments that my hon. Friend made.
I will respond to the other questions, again in reverse order. The hon. Member for Carshalton and Wallington asked about continuous periods interspersed with purposes other than the initial reason given for the visa. Somebody who spends two periods in the UK with a qualifying immigration status, and who in between is lawfully in the UK with an immigration status that is not a qualifying one, can have the two qualifying periods aggregated. The hon. Gentleman is noddinghe knows what I mean. For example, an applicant who entered under the work route, stopped working after three years to commence a two-year period of study and then resumed work, could count both periods spent as a worker towards the qualifying period.
The Government have set out that only if migrants enter through one of the three key routeswork, protection and familycan it lead to naturalisation as a citizen. We made it clear that only time spent in one of those routes is capable of counting towards the qualifying period for naturalisation. If the period in the middle was spent as a student, which was the hon. Gentlemans example, it would not count because that is not a qualifying route. However, the work chunks on either side could be aggregated. I hope that I have answered that question.
I was asked whether refugees have to pay fees to get citizenship. Like everyone else, they have to pay. However, unlike other migrants on the path to citizenship, they are not charged at other stages of the process. In other words, when they have been given protection, they become the same as other people on the route. By then, they would be established in our country.
The hon. Member for Ashford asked which categories of people will have qualifying immigration status. There are three main routes. The first is the family route, which involves the family members of British citizens. The second is the work route, which is made up of migrants on tiers 1 and 2 of the points-based system, but not those on tiers 3, 4 or 5. The third is the protection route, which involves refugee status or humanitarian protection, or discretionary leave. Another route is as an EEA entrant; such people will retain the right to naturalise as a British citizen, provided they meet the criteria.
The hon. Gentleman also asked about periods of absence. He meant people going abroad, rather than staying in the UK under another category. I do not support, and I doubt that he does, the idea of an average calculation of absences over the qualifying period. However, we will not examine the requirement when the absences in the earlier part of the qualifying periodthat is, at the entry into the probationary citizenship stagehave been examined already. I hope that he is following my logic.
First, we are not concerned about absences from the UK before the start of the qualifying period. Secondly, we want to avoid a system that penalisesfor exceeding the time limit by a few daysthose whom we might want to remain, or who might have justifiable reasons for their absence. In other words, like my point about continuous employment, we want to put some common sense into the BillI always try to do that in legislation, although it is not always straightforward. In recognition of the need for flexibility, the Bill provides discretion to allow the Secretary of State, or his designated officials, to overlook a period of absences exceeding 90 days in a year in the special circumstances of a particular case. We shall, of course, continue to expect migrants to justify large absences, and in such cases we would expect the applicant to demonstrate close links with the UK through length of residence, and presence of home, family and estate in the UK. We would then consider the reasons for an absence. The 90-day rule will apply, therefore, but the discretion will enable the applicant to demonstrate a genuine reason for an absence. That is better than making automatic assumptions.

Tom Brake: Before the Minister moves on to other mattersor, indeed, concludesmay I return briefly to the issue of refugees? Am I right in thinking that the citizenship application costs are about £700? Some refugees might suffer from significant mental health issuesperhaps as a result of torture. Is there discretion within the system to allow those fees to be waived?

Phil Woolas: I understand the hon. Gentlemans point, but the answer is no. The citizenship fee applies at the point of obtaining citizenship, by which time the refugee will no longer have refugee or protected status. The circumstances that he mentions could apply equally to those who have come through different routes and for reasons beyond their control. So I do not accept his argumentwell, he was not making an argument, but asking a legitimate question.
Clause 40 ensures that the rights and benefits of British citizenship are matched by responsibilities and contributions made to Britain. It does so by creating a clear system to determine progress on the journey to citizenship, a clear set of incentives for migrants to progress to citizenship and a clear undertaking that citizenship should be earned. To earn the right to progress between stages, migrants will be required by the Bill, first, to meet English, or Welsh or ScottishI am looking for help with pronunciation hereGar-lic language requirements. [Hon. Members: Garlic?] I kid you not, Sir Nicholas! I am quoting the hon. Member for Perth and North Perthshire (Pete Wishart), who made this point on Second Reading. I always thought that it was Gay-lic.

Crispin Blunt: It is Gallic.

Phil Woolas: Well, I misheard then.

David Hamilton: I would say Gay-lic. I would like to make one other observation though. Why include Welsh and Scottish Gaelic, but then miss out the Irish? There are four parts to this country. In Northern Ireland, Gaelicor Gay-licis also spoken regularly. On an administrative point, the Government might like either to include the Irish or take out the Scots and Welsh and simply refer to English.

Phil Woolas: I am treading into areas about which I know nothing. I accept hon. Members pronunciationI was surprised when I heard the other pronunciation.
Seriously, however, there is a consensus on this matter. In 2001, when my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett) and I first made the suggestion, it was met with derision by the commentating class, but now there is consensus.
The second requirement on migrants will be to contribute to the economy and to pay tax, if they are economic migrants. Thirdly, and critically, there is a requirement to obey the law so that criminal behaviour will have certain consequences. In that sense, the word probation is right.
The requirement to undertake active citizenship is also included, and the ability of the migrant to progress more quickly by meeting those active citizenship criteria is a sensible change in policy. In my experience, the vast majority of immigrants to our country want to get on. They want to learn to speak English. They want to improve circumstances for their families, and we want to help them to do so. The clause not only helps the migrant, it helps to reassure the wider population that the migrant wants to be in our country, wants to make a positive contribution, wants to obey our laws and wants to learn our language. In the long run that will change the relationship between the migrant and the indigenous population in a wholly positive way. That is why I am grateful for the support of the House for that principle.

Question put and agreed to.

Clause 40 accordingly ordered to stand part of the Bill.

Clause 41 ordered to stand part of the Bill.

Clause 42

The qualifying period

Damian Green: I beg to move amendment 45, in clause 42, page 34, line 42, at end insert ; or
(c) has participated in activities of benefit to the individual applicant, the host organisation and the wider community..

Nicholas Winterton: With this it will be convenient to discuss amendment 46, in clause 42, page 34, line 42, at end insert
(6) The activity condition can be completed at any point during an applicants arrival in this country or the subsequent probationary citizenship stage..

Damian Green: The Minister has just helpfully mentioned the activity condition, which is clearly a central new idea that the Government are introducing. The amendment is designed to probe some of the details. At the moment there is a large black hole in the Bill as to what is meant by activity condition. Even those who accept in principle the argument that the Minister made in our most recent debate, have a series of legitimate questions about how this activity condition will be implemented in practice. Yet again, inevitably, the details are not given and are left to be clarified in secondary legislation, but as it is such a significant shift in this countrys attitude to immigration and immigrants, it is worth the House knowing as much as it is possible to know at this stage.
I was grateful to receive an e-mail yesterdayI am sure the whole Committee received itabout the document that had been made available. I was slightly less thrilled when I discovered that the document had been sitting in the Vote Office for 48 hours before the e-mail went out. The Minister looks puzzled, but the document is dated 4 June

Phil Woolas: It is an evolving document.

Damian Green: It may be, but one of the amendments before us is specifically addressed in the document. The document was not publicised to any members of the Committee until after it was possible to table amendments in time for them to be debated now. I do not think that was an organisational triumph. We can deal quickly with amendment 44, which seeks to say that the activity condition can be completed at any point during an applicants arrival in this country or the subsequent probationary citizenship stage. On carefully reading the document, I discovered that is the Governments thought too. I am pleased that in that detail the Minister and I are thinking along the same lines.

Nicholas Winterton: Order. May I try to be helpful? I think the hon. Gentleman is referring to amendment 45, not 44. We are debating amendment 45, with which it is possible to discuss amendment 46.

Damian Green: Thank you, Sir Nicholas. I meant to say amendment 46, not amendment 44. I knew that I wanted to refer to the second amendment in the group. Amendment 46 is covered explicitly in the document and, either by coincidence or some other happy event, the Minister and I arrived at the same conclusion.
The Minister will be aware that in another place, my noble Friend Lady Hanham questioned Ministers carefully on the detail of the activity scheme and condition. She was not satisfied that all the voluntary sectors concerns had been properly considered, and thought that the practical application of the scheme was still too vague. The document addresses some of the practical issues, to which I shall turn in a minute, because some of the suggestions are dubious and othersfranklyeven worse.
The underlying problem is that the proposals for earned citizenship will rapidly create fairly big bureaucracies, and the groups most affected will be in the voluntary sector, which we all hope to support and we all know is most vulnerable to bureaucracy. Small charities and volunteering organisations are the least able to cope with onerous bureaucracy. That would be extremely unfortunate for the voluntary sector, which is keen to help and, by and large, wants more volunteers and would like to serve many of the purposes for which the Minister argues under the activity condition and earned citizenship. Nevertheless, their lives will be a misery if the scheme produces too much bureaucracy.
Many of the underlying problems are summed up in five questions from Volunteering England, which is part of the steering group, so I hope that it is having a significant input to the Governments thinking. I would like the Minister to respond to the five questions.
First, how does the Minister expect organisations without the financial resources to reimburse volunteers for travel and other out-of-pocket costs to participate equally in the active citizenship scheme? That is a reasonable and practical question. Secondly, many potential applicants will have caring responsibilities and may not be able to rely on family members for the care of children and other dependants. How will he ensure that funds are made available to reimburse participants for costs such as fees for child minding or respite care incurred while fulfilling the requirements of the active citizenship scheme?
Thirdly, does the Minister agree with Volunteering England that every potential applicant should have an equal opportunity to participate in the active citizenship scheme, and what does he propose to do to support those with extra needs linked to disability, or even straightforward lack of literacy in English? Fourthly, a recent national survey on volunteer management by the Institute for Volunteering Research shows that nearly a third of organisations do not have the time or resources to cope with more volunteers. That puts a gloss on the point I have just made that, on the whole, the volunteering sector wants more volunteers, but a third of the organisations cannot cope with more. How will the Minister encourage organisations in that position to open up to new opportunities? In particular, how are they supposed to spend time on the verification arrangements for the active citizenship scheme? I shall return to the verification arrangements, because they pose a serious problem that must be addressed.
Other people have expressed considerable and legitimate fears as to what will happen. There are those, including organisations such as Liberty, who object in principle, saying that the scheme is discriminatory and exploitative. At this stage, it will be useful for the Minister to address that complaint, which I do not share. I can see how the scheme might become discriminatory, but I do not think that it will be discriminatory in principle. Clearly, however, if the Minister wants overwhelming acceptance of the whole idea of earned citizenship, he will have to take that argument head-on. The Minister looks slightly puzzled. I will explain.
There are those who say that in principle, any earned citizenship scheme is discriminatory and exploitative. While I have a small amount of sympathyI can see how it might beI do not see any reason why in principle it should be. As the Minister argues the case for the new scheme, he will have to take on that particular argument.
Associated with that is the general point that whereas some migrants will find it easy to contribute, and their lifestyle, skills, work and family position make it fairly easy for them to take on extra voluntary work for the number of hours that the Minister proposes, that will not be true of others. At that point, it is quite hard to argue that it is not discriminatory. The other point, which I think is valid, was made by Liberty. It is unclear how the Government intend or expect to regulate volunteering on that scale.
The document, which I keep referring to, addresses the regulation. Let me move on to it, because it gives rise to some of the most difficult questions that the Minister has to answer if he believes that he will create a good and practical scheme. The document states that the Government
place the onus on the applicant to tell the truth about their active citizenship with their citizenship application, but with a role for a referee and a process to verify the bona fide status of the organisation concerned...The referee would sign the applicants form to verify that the details given about their active citizenship were correct. A referee would be defined as someone in a supervisory capacity with personal knowledge of the applicants active citizenship.
So far, it is a bit bureaucratic, but still acceptable. However, the next suggestion is ridiculous.
Whilst the Design Group felt penalties should fall solely on the applicant the Governments position is that there will also be penalties for referees who act inappropriately as an additional safeguard. Under Section 46 of the British Nationality Act 1981, someone who makes a false or reckless statement for the purpose of procuring anything to be done or not to be done under the Act can be sentenced to a term of imprisonment of up to three months or a fine of up to £5,000, or both...Both applicants and referees would be subject to sanction.
The Minister will try to persuade voluntary bodies and well-meaning people all over this country to support the scheme. At the start of it, he will make it compulsory for people to have referees, but he is also saying that the referee will be laying themselves open to a fine of £5,000 and three months imprisonment if they themselves are deceived by an applicant. I suggest gently to the Minister that that cannot be a sensible way to start offit will not work.
The Government Whip is shaking his head at me. I am reading word-for-word from his own document that the Government placed in the Vote Office. He can disagree with it, and indeed I hope that he does, because I disagree with it. That is the burden of what I am saying. That does not seem to be an extremely good way to design a new scheme. I hope the Minister will mount an elegant retreat from it fairly quickly.
I also mentioned the regulatory regime that the Minister is proposing to set up. The document makes the point that some 90 local authorities currently operate a nationality checking service on a voluntary basis. Those services check the details of citizenship applicationsfor a fee to the applicantand pass the applications to the UKBA caseworkers in a state ready for immediate caseworking. The thinking of the group is that
our local authority partners are uniquely placed to offer an accessible service to applicants for British citizenship.
Again that is arguable, but it seems to be a practical step forward.
However, the document goes on to say:
Whilst the Design Groups preferred option was to make use of NCS as a preferred provider, the Governments initial thinking is that we should aspire to go further than this and make its use compulsory. The Governments position is that ideally, all applications, particularly those with an active citizenship element, would be submitted through NCS enabling providers to use their local knowledge to assess and verify evidence.
In other words, wrapped up in all this wording is yet another duty on local authorities. As one would expect, there is no suggestion that any extra funding will be available for this service. The document suggests that local authorities will have to provide this service compulsorily for immigrants in their area, or that immigrants who do not have a local authority that provides this service will not be able to use this method, or that some other compulsion will be operated.
Of course, the burden for this service will fall hugely disproportionately on a small number of local authorities. We do not get an even distribution across the country of long-term immigrants who wish to apply for citizenship. Inevitably, many of the local authorities that will be hardest hit by this extra burden will be those that are not the wealthiest in the country. So I would advise the Minister that if this idea is, as it is described, an aspiration of the Government, they might wish to stop aspiring to it very quickly, because it does not seem to be either a practical or a fair aspiration.
I do not wish to read out the whole document, because it is available. However, the third point that I wish to make is about the activities involved: the very basic things that people can do to prove that they are an active citizena worthy person to be granted the privilege of British citizenship. The list of such activities bears some examination and indeed it should be changed by the Minister. It starts off with things that I suspect nobody would raise an eyebrow at. They are:
• volunteering at the local hospital for example helping at a WRVS shop
• volunteering at a health related community education project
• volunteering at a local school for example to raise reading levels of primary school children.
Of course, that last activity raises questions about Criminal Records Bureau checks, as these people are people who, by definition, have recently come from other countries and we know that CRB checks are much more difficult to carry out on people who have recently arrived in this country, and yet we are actively encouraging them to go to work in schools. Has the Minister thought through the practicalities of that suggestion?
Other activities on the list that are still reasonably good are:
• volunteering at a lunch club for the elderly
and
• volunteering at a soup kitchen for homeless people.
However, I question whether some of the activities lower on the list have been fully thought through. They include:
• volunteering for a faith organisation.
Does that mean any faith organisation? Bodies can declare themselves to be a faith organisation. Not all self-styled faith organisations are necessarily places where one would want to say, I have worked there for 15 hours and therefore I qualify for a fast track to a British passport. I put that suggestion to the Minister; he will know as well as I do the sort of organisations that I am talking about.
The list also suggests trade union activities. I am not sure that several hours standing on a picket line should necessarily be a qualification for a fast track to a British passport. [Interruption.] I thought that that comment would be controversial across the House.

Phil Woolas: Read the next one.

Damian Green: No, I shall read the one before, which is:
• canvassing for a political party.
I am happy to say that we do not find it difficult at the moment to find people to canvass for our party. I am conscious that, on the Government Benches, it may be more difficult to find such people than it has been before. However, the idea that people who, by definition, cannot have a vote because they are not citizens yet should be specifically encouraged to engage in some political activity for a party as a way of proving their active citizenship gives rise to some quite significant questions about how hard this list has been thought through. The Minister is making a face that makes me think he considers that all kinds of political activity in all circumstances are good.

Tom Brake: The hon. Gentleman has prompted me to rise to my feet, to ask him whether he thinks that delivering Focus constitutes an active citizenship activity.

Damian Green: It is so long since I have found anyone delivering Focus that I cannot really comment. Seriously, though, when people who have newly arrived in this country ask, What should I do to get myself a British passport to become a citizen? should we be telling them, We are the local political party, why dont you deliver our leaflets? This measure has not been thought through.

David Hamilton: Surely the hon. Gentleman is not encouraging people to get employment and then not join a trade union that would protect their rights? Would he bring that in if he were elected?

Damian Green: The hon. Gentleman gives rise to another interesting point, in that this activity will only count if it is unpaid. From the viewpoint of a strong trade unionist, which I guess the hon. Gentleman is, it seems slightly perverse that a person is allowed to work for a trade union, which will qualify them, but then they must not get paid for it. Imagine the perversity of the situation: jobs that could be done by people who are being paid are, instead, being done by people who are unpaid, and the jobs are being done for trade unions. My understanding of trade unions is that that is the thing they hate most of allpeople doing unpaid labour displacing people who would otherwise be doing paid labour. This Labour Government are suggesting precisely that as a qualification. There is a significant lack of coherence at the heart of this bit of the proposal.
I am not clear what consultation has been had with the trade union movement about this. I am perhaps less in tune with the motives and motivations of the trade union movement than Labour Members, but even I feel that this measure is a little perverse. A person can help the trade union as long as they do not get paid. The moment that they are paid for their work, it does not count as voluntary activity and does not count as a qualifying activity for the purpose of active citizenship. I hope that the Minister will fully explain the thinking that lies behind the proposal.
Finally, I should like to note the extraordinary power that is to be provided to the Secretary of State by the insertion of the proposed new subsection, which will allow the Secretary of State by regulation to amend the length of the qualifying periods for citizenship. We had a long discussion earlier today about the problems of quasi-retrospectionof changing things in ways that might be challenged by the courts, as they have been under the highly skilled migrant programme. A huge power has been slipped in here by which the Secretary of State can change the length of time of the regulations. I am genuinely not sure whether that has been slipped in in the hope that no one would notice. However, we have noticed, and it seems to be quite a big power given the importance that the Minister is placing on not just the length of time people have to go through to qualify for citizenship but the fact that they can do certain things that reduce that time. He is making it pretty easy for the current or any future Secretary of State to change the conditions under which the length of time can be set.
I hope the Minister can address that wide range of important issues, including the type of activities that would count, the potential burden on the voluntary sectorspecifically the fines for referees and the amount of form-fillingand the extra burden on local authorities regarding the nationality checking service and the funding. It is suggested that the migration impact fund would be used to fund some of that activity. Up to now, Ministers have said that that fund is available to local authorities that have been hard hit by unexpected arrivals of immigrants. There is also the potential burden on employers, because many of these people who will be doing this voluntary work will be doing full-time work as well, particularly in the current economic climate. What is suggested here is that employers will be happy to give them time off to do their voluntary work. Clearly, that will be easier for some employers than for others; it will be easier for large employers than for small employers.
The basic point that I am makingI think the Minister will have got it by nowis that even if one accepts the argument for encouraging people to integrate, making them feel that they have to contribute something to the community and giving them a huge incentive for those worthy activities in the form of two years off the period for which they have to be here before becoming a British citizen, it is absolutely a matter in which the devil is in the detail. So far, the detail released suggests that the scheme has not been fully thought through before being introduced into public policy. All experience tells us that schemes introduced in that way and at that speed often end up doing more harm than good. I hope that considerable thought is given to the scheme before it translates into anything in the real world.

Tom Brake: I want to echo many of the queries raised in relation to the amendments, and I will listen carefully to the Ministers response. There are a couple of other queries that I would like to put to him that I believe are pertinent to the amendments, and I hope he can answer them as well.
I agree entirely with the point about voluntary organisations. What greater disincentive can there be to voluntary organisations than to know that they will be subject to penalties, and possibly a term of imprisonment, if they fail to account correctly for the volunteering activities of people who join their organisation?
The issue of CRB checks was raised. If the Government are going to push people down that route, additional resources will clearly be needed in that area. Like many other Members, I suspect, I regularly receive complaints about the speed with which CRB checks are done. People are actively prevented from securing employment because they are waiting for their CRB check to come through. If we are going to be creating many more requests for CRB checks, additional resources will be needed.
Can the Minister provide us with an estimate of the number of volunteers that he thinks will seek voluntary activities each year after the Bill has been passed? Has Volunteering England identified what demand for volunteers it will be able to satisfy and what support those volunteers will need in order to be able to volunteer? Also, has he heard any representations about the difficulties, already highlighted in the other place, of satisfying demand for places for volunteers, particularly in rural areas? It is much easier in an urban area; there are probably many more voluntary organisations, or at least many more that are easily accessible, than in a rural area.
Instead of raising the issue in a clause stand part debate, I will ask the Minister one final question on volunteering for young people. I had an amendment that I did not table in time and to which I therefore cannot possibly refer, Sir Nicholas, but I understand that it would not have achieved what we wanted it to even if I had. It would have sought clarification from the Minister on whether children would be required to undertake volunteering activities for their citizenship, and whether that would place an undue burden on, for instance, children whose first language is not English and who might be trying to combine studying English with learning in their own language. They might, therefore, have less time available to undertake active citizenship activities. I hope the Minister will respond to those very specific queries.

Phil Woolas: We have put forward the document on the work of the design group, to whom we are very grateful indeed. The background to this is that in July 2008 we published a document entitled A Path to Citizenship: next steps in reforming the immigration system. I always like documents that say what is actually inside themit is much better.
We set out our proposals in our response, to create the new path to citizenship. The design groups document contains the work that it has done so far. We set the group up last summer. It has representatives from the voluntary sector, including Volunteering England, which was referred to by the hon. Member for Carshalton and Wallington. Local government is represented as well. The groups remit was to advise on the most effective way to operate the active citizenship process in practice. We have now agreed a proposed model for accrediting and verifying active citizenship, but I emphasiseand I do not think it is a weaknessthat we are embarking on a very significant policy change. We are evolving and consulting on it extensively. This is not on the face of the Bill and one would not expect it to beto put it there would render it inflexible.
We would be the last to say we are perfect, but let me try and answer some of the specific points that have been raised so far. The idea of active citizenship has been around for some time. Its definition takes us into difficult areas. I challenge anyone to put forward a set of proposals that would get unanimity, perhaps even consensuscertainly at first stab. I hope the Committee recognises the common sense of what I am saying.
At its core, I ask the Committee to consider the point that active citizenship and what we are discussing here is a way in which probationary citizens can speed up the time period for becoming a citizen. For migrants who have come to the UK as a worker or a refugee and European nationals, the default qualifying period for application for citizenship will be eight years. For migrants who have come to the UK as the family member of a UK citizen or someone with permanent residence here, the default qualifying period will be five years. So none of these are requirements for citizenship; they are a way of incentivising and speeding up citizenship, and from the wider communitys point of view are a way of benefiting from that application.
Let me turn to the specific answers to the questions. On the question about children asked by the hon. Member for Carshalton and Wallington, an application under section 6 of the British Nationality Act 1981 can only be made by a person of full age. It is not envisaged that a child would be able to do this programme. He asked about the number of volunteers. Volunteering England has looked at that as well. We have, on advice from the design group, assumed that there will be a 5 per cent. increase in volunteering among the migrant population who are eligible for the probationary citizenship each year. It is assumed that 4,000 migrants per year will undertake volunteering. I confess to the Committee that that is a finger in the air. One has to make working assumptions and have the ability to revise them as policies roll out. That is why it is sensible not to put things in the Bill. That is the best advice that we have.

Tom Brake: Presumably the Minister is not saying that 5 per cent. of people seeking citizenship will opt for active citizenship to minimise the length of time before they are awarded citizenship.

Phil Woolas: This is the assumption that we have been working on. It is the advice that we have. First, it is an increase in volunteering; there is a substantial amount already. It is based on an assumption of the number of applications, of course. Therefore, it is assumed that 4,000 migrants a year, in addition to those who already do, will undertake volunteering. The range of assumptions runs up to 10 per cent. but that is per year, so as time rolls on there will be more people. I give that as information to the hon. Gentleman; I am not suggesting that it is exact or a science. I refer him to the impact assessment, which contains further analysis of those figures.

Damian Green: The Minister has the exact guess, as it were, of 4,000. What proportion of each cohort are the Government assuming will participate? Intuitively one feels it will be a very high figure. Has that figure been assessed?

Phil Woolas: Yes it has, but I do not know what it is. I am being frank with the hon. Gentleman. The previous impact assessment made reference to it.
I shall answer questions in random order. The hon. Gentleman asked about resources for volunteering organisations. This was looked at. We recognise that people and groups have expressed concern about this and the design group looked at it for us. It worked with the voluntary sector and had voluntary sector representation on the committee. There are opportunities for funding to address any cost impact. The hon. Gentleman mentioned the migration impact fund. There is no policy decision on that; it is a suggestion from the design group. There is also the European integration fund, which may be able to assist. There is a concern that national bodies will receive a lot of requests for funding, so clearly there is work to be done in this area. I am not signalling that the migration impact fund will be used for other than the purpose it has been set up for. The hon. Gentleman picked me up on that point, as do the local authorities, for understandable reasons.
On applicants with special needs, there is the flexibility in the system to take into account special needs. The hon. Gentleman mentioned disabled people and raised the important point about carers. It is not policy that there should be any financial compensation for taking partor remuneration, as he said on his trade union point. It therefore is incumbent on the system, in fairness, to take into account the fact that people have caring responsibilities. Without being too rigid it is incumbent on me to point that out. We do not believe there are any equality and human rights implications. We have looked at that point, of course, not least because this is voluntary, not compulsory.
The hon. Gentleman asked about the minimum time requirement. We considered that point. Migrants will be able to demonstrate active citizenship at any point of the route. That will allow them to plan activities in line with work and family commitments. We are also looking at what the time commitment should be for active citizenship. Again, does one want a rigid number of hours a week or an average over a period of time? I do not envisage people clocking in and clocking off in relation to this.
The hon. Member for Ashford made an important point, as did the hon. Member for Carshalton and Wallington, about the critical passage at the beginning of the document about whether there should be financial penalties. The hon. Member for Ashford expressed amazement at that. I sometimes think he lives in a different world from the one in which I live. It is, undoubtedly, sadly the case that individuals will attempt to exploit any new system. Not all voluntary organisations are what they appear. Therefore, the challenge is to ensure that we get genuine organisations to participate but that we do not create a cottage industry of abuse and fraud, which could well happen.
Recently, there have been newspaper reports about exposed bogus colleges, which I am proud to have brought to the publics attention and clamped down on. I confess that that should have been done years ago by Governments of both parties. That illustrates the type of problem with which I am dealing. The fine, or the punishment, can only exist where the person has intentionally and knowingly falsified. In relation to the example that the hon. Gentleman gave, if the applicant misleads the sponsor and the sponsor is inadvertently misled, of course, that would be covered. He is right about that. I have very helpfully been handed something with the word recklessly on itknowingly, intentionally or recklessly are the criteria.
A key strength of the points-based system and this new system is that it puts an obligation on the sponsor in the case of the points-based system. That is a very effective tool in controlling visa overstayers. In this case, an obligation will be put upon the referee to ensure that the information is valid, so that we can avoid the circumstance whereby some cowboy might sign a document in which he says, Yes, this person has been volunteering in my community welfare advice centre, when no such centre exists.

Damian Green: I take the Ministers point. Of course, he is right: any opportunity such as this will be an opportunity for fraud. We have seen such things happen a lot in the past. However, in these circumstances, I am not sure that I accept his point that one can read across from sponsors, who gain a direct benefit from sponsoring an immigrant, to referees. Although he might deter fraudulent referees with these draconian penalties, they will also deter genuine potential referees, particularly in relation to small charities or rural areasas the hon. Member for Carshalton and Wallington mentionedwhere there are lots of small charities. There is an unpleasant combination of extra bureaucracy and extra risk that will put off small charities. Members on the Government Benches are looking shocked by that.
The most important conversation I have had about the voluntary sector was with the Connexions service in Kent, which said that many small charities find it difficult to fill in its forms and as a result do not get enough money, and that it had therefore set up an officer to teach them how to fill in forms. As a prime example of how not to do anything, that is ideal. In five years time, I do not want Government bodies setting up and paying new officers so that they can train small charities in how they can become effective referees for people trying to earn citizenship. That is what I fear will happen.

Phil Woolas: I give way to the hon. Member for Carshalton and Wallington on the same point.

Tom Brake: Voluntary organisations might want some reassurance that the legal terminology of intentionally, recklessly and so on that is used will ensure that they will not be put in a position where perhaps the quality of the active participationthe volunteering activityis being challenged. I can think of examplesI am sure other Members can, toowhen work experience students have come to us and, a couple of months later, we have received a request to fill in a form saying that they did the job properly and always turned up. Sometimes it is difficult to recall who they were and whether they did, in fact, play an important role. Is that sort of thing ever likely to be challenged?

Phil Woolas: The hon. Gentlemen are raising a perpetual point of public policy that all local and national authorities facethe balance between ensuring due probity in the voluntary sector and not stifling it with burdensome bureaucracy. Getting that balance right is the challenge; that is what the Office of the Third Sector and the covenant address themselves to. In my constituency one of my welfare groups complained that it was overcome with burdensome forms; we released the burdens upon them and the organiser ran off with the money. We have to get the balance right.
To be fair to the design group, which we all want to be, the point about the penalties refers to section 46 of the British Nationality Act 1981. This is not a new principle being applied; it is an old one in new circumstances. I take the point that is being made; this is why it is right to scrutinise these things in detail.
Moving on to the duty on local authorities, the hon. Member for Ashford was speaking against a potential new burden being placed on them. Around 80 local authorities have signed up to the nationality checking service. There is an opportunity for local authorities: I would not over-egg it, but this is a potential source of income. We envisage that some local authorities will develop an expertise and may act on behalf of areas in their proximity. We do not want to make it compulsory; we think that would backfire. The local authorities are keen members of the design group and there is no duty on them.

Damian Green: I want to check that the Minister said he did not want to make it compulsory. That contradicts what is in the document.

Phil Woolas: Which?

Damian Green: I will read it out:
the Government's initial thinking is that we should aspire to go further than this and make its use compulsory.
Does he want it to be compulsory or not?

Phil Woolas: The hon. Gentleman is picking up on point 3 of the document, I think. It should be compulsory for the applicant to register through the nationality checking service, but not for the local authority to provide that service. That is the question we are looking at. I have raised further doubt in the hon. Gentlemans mind; he should read the paragraph at the bottom.

Damian Green: Will the Minister give way?

Phil Woolas: Let me move quickly on. The proposals on local authorities are being discussed. The views of the Committee are important to that consideration, of course.
Hon. Members asked a number of other questions. The document lays out our thinking on those. We are creating this structure so that active citizenship can become real and meaningful in the United Kingdom. We have laid out some of our ideas in the document. I think that trade union activity is a legitimate part of active citizenship. Of course, the trade unions are dependent on voluntary activityfull-time officials are paid for their work, but voluntary activity from the shop floor is essential. I was interested in the debate about whether party political activity should be considered a legitimate part of active citizenship; a dividing line opened up on that issue. My view, which will not count in the long run, is that we should encourage political parties. We should encourage the idea that politics is part of citizenship. Excluding it from the regulations would send the wrong message; it would imply that participating in a political party does not contribute to civic society. I would argue that my party helps immensely and the hon. Gentlemans does damage, but I suppose he would argue the opposite.

Crispin Blunt: Is there not a possibility of some degree of exploitation? Immigration provides a substantial amount of any Members case load. People will come to us on their route to citizenship to seek our assistance when things have gone wrong in the handling of their case by the Home Office. As with applications to get children into faith schools, people will try to create circumstances to advance their case for citizenship. One obvious way to do that is for them to get their Member of Parliament to assist with their immigration case and, at the same time, provide voluntary assistance to that Member of Parliaments political party. I am afraid that the opportunity for exploitation is all too obvious.

Phil Woolas: Were such a Member of Parliament to knowingly and intentionally, or recklessly, to sign a certificate, they would be imprisoned under

Crispin Blunt: That is not the point at all. How are Members of Parliament meant to differentiate between those coming before them seeking help, and those enthusiastically endorsing their political party and all that they stand for and wanting to rush out and deliver leaflets? That could be Focus, if that happens to be in the constituency of the hon. Member for Carshalton and Wallington, In Touch, if it happens to be in Reigate, or whatever passes for Labour propaganda today.

Phil Woolas: I take the point. Such activity, whether it be for a political party or one of the other bodies that have been referred toor others referred to in the futurewould have to be recognised as part of the scheme and be certified by the accrediting body. It would not be a simple matter of self-certification. This is the challenge that active citizenship puts before us. The hon. Member for Ashford made a point about faith organisations. Defining a genuine faith organisation is a challenge that the Charity Commission, local authorities and others face all the time. Again, the proper superstructure would have to be in place to ensure that things were working.
Damian Greenrose
Tom Brakerose

Phil Woolas: I will give way once more, but I am conscious that we are talking about the design groups work, not the clause.

Damian Green: I am interested in the important point that the Minister just made about a superstructure for checking. That sounds like another licensing authority to decide what is an appropriate body to provide the imprimatur of proper active citizenship. We all agree that the opportunities for exploitation, fraud and unpleasant things happening are considerable. The Minister is right that if we go down this route, there will need to be a checking body. What will that body be? Will it be the local authority, national Government or another new regulatory body? Has any thinking evolved around that yet?

Phil Woolas: Yes, indeed it has. The document from the design group mentions the national checking service that I was talking about, for which 80 local authorities have volunteered. Clearly one needs local input. There cannot be a national top-heavy superstructure. It has to be based on local knowledge, and that is how we envisage the scheme.
I sense impatience in the Committee. I have spoken at length to try to answer questions, but have not talked about clause 42 and the amendments. I hope that I have covered the points that have been raised and justified the desirability of the clause. I resist the amendments and support the clause.

Damian Green: I can assure the Minister that there was no impatience on this side of the Committee. Conservative Members think that this is a hugely important part of the Billin some ways it is the most radical. One reason why there were so many interventions and questions was because the process is clearly imperfect. We are at a relatively advanced stage of the Bills proceedings. The Bill has already gone through another place. It is in Committee here, yet we are still groping for details of how the system will operate. The document from the design group that we have been discussing is full of caveats. I do not blame the group at all; it is trying to get to grips with an entirely new system. It is perfectly clear to anyone who reads the document that it is not very far down that road.
I do not intend to press the amendment to a Division, but I hope that the debate has sent up a warning flare to the Minister that an awful lot of additional work needs to be done on the clause before it is put into effect. It is possible that the unintended consequences of what is not an ignoble idea could cause severe damage. He sat down thinking that he had talked for too long, but I disagree with him on that[Interruption.] I do not want him to take that as a precedent.
The Ministers speech was so long and there were so many interventions precisely because the more one thinks about the details, the more problemsand, frankly, ambiguitiesemerge. He responded to my point about the checking arrangements for bodies with the nationality checking service, but I understand that that service is to check whether individuals are doing the appropriate thing. I am talking about the bodies with which the individuals will volunteer. The Minister is quite right to say that some of those will be big, established charities while others will be small charities that we would all recognise as such. At the margin, however, there will be some bodies that are not recognised as charities or as volunteering bodies. Beyond the margin, there will be organisations set up specifically for getting people involved, but that are basically scams whereby they can fulfil their requirements and get citizenship two years early or, even worse, organisations that are actively of unpleasant intent and see a new source of potentially vulnerable, and perhaps slightly ignorant, recruits to exploit.
The regulatory regime for bodies is therefore hugely important, but I detect no sign, from either what the Minister said or the document, that that regulatory regime will be in place, or that how it will operate has been thought through. Although this might be a good idea that could go forward, it is also potentially a hugely dangerous idea, and I hope that Ministers will take that on board in the remaining stages of the Bills passage.

Tom Brake: Does the hon. Gentleman agree that the one question that the Minister must be able to answer is how someone anywhere in the country will be able to check whether a voluntary organisation is a legitimate organisation that can provide a genuine active citizenship opportunity? If that cannot be answered, I am not sure where the scheme is going.

Damian Green: The hon. Gentleman touches on an important point. There are clearly bodies that could do that, such as the charity commissioners, which register charities. However, the activity is so important, and almost open-ended as new people arrive, that whoever does it will find themselves having to devote considerable resources to it. It will therefore be costly in terms of money, time and staffing. That point is not remotely trivial.
The more we think about it, the more we agree we need proper regulation, but then the more difficult, expensive and time-consuming that regulation will become. Ministers should have thought through what that might entail, not least in terms of possible public expenditure. I detect very little sign that that work has been done, which, frankly, is slightly worrying.
I hope that on Report, and perhaps when the Bill goes back to another place, Ministers will have something much more concrete with which to reassure us. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Phil Woolas: I am not quivering. I rise briefly to answer the points that have been made. I give reassurance by referring to clause 42(5), which states that regulations, whether alone or with other provision,
may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament.
I take the point made by the hon. Member for Ashford that the regulations and what I have described as the superstructure are evolving. I am aware of his caution. There has been a lot of work, but I accept that these are the emerging thoughts of the design group. The issue is extremely important, which is one of the reasons why the proposed commencement date is what it is.

Question put and agreed to.

Clause 42 accordingly ordered to stand part of the Bill.

Clause 43

Children born in UK etc. to members of the armed forces

Question proposed, That the clause stand part of the Bill.

Phil Woolas: I am sorry, I quivered, Sir Nicholas.

Nicholas Winterton: No, you rose.

Phil Woolas: Clause 43 rights what some see as a wrong and is consequential to clause 47. The reason that clause 43 appears earlier than, but is consequential to, clause 47 is because it relates to sections of the British Nationality Act 1981. Section 1(1) of the 1981 Act currently provides for a person born in the UK or a qualifying territory to acquire British citizenship automatically at birth, if born to a parent who is either a British citizen or is settled for nationality purposes in the UK or qualifying territories.
Section 1(3) of the 1981 Act currently provides for a person born in the UK to register as a British citizen if, while they are a minor, their father or mother becomes either a British citizen or becomes settled for nationality purposes in the UK. Under subsection (1), a person born in the UK to a foreign and Commonwealth parent who is currently serving in the UK armed forces acquires British citizenship automatically at birth, or, under subsection (3), they may register as a British citizen because the parent is recognised as being settled in the UK for nationality purposes. Section 50 in part 2 of the 1981 Act sets out the definition of settled in the UK or qualifying territory for nationality purposes, which requires the person to be ordinarily resident and to be free from immigration time control.
The Home Office lawyers have advised that the application of that definition to foreign and Commonwealth members of the UK armed forces is now ambiguous following changes to Ministry of Defence recruitment and training practices, which means that those foreign and Commonwealth persons eligible for recruitment to the UK armed forces are no longer expected to have indefinite leave to remain in the UK. However, since 1997 members of the UK armed forces continue, as before, to be exempt from immigration control while subject to service law during the period of their service in the UK armed forces.
The Government wish to maintain the current rights to citizenship of children born in the UK or a qualifying territory to a parent who is, or who becomes, a foreign and Commonwealth member of the armed forces. That is because the right has existed in law and has been asserted by this class of person since commencement of the 1981 Act. It is also because the Government are committed to improving the lives of service personnel, their families and veterans, as outlined in the MOD Command Paper from July 2008, The Nations Commitment: Cross-Government Support to our Armed Forces, their Families and Veterans, by amending section 1 of the 1981 Act to accommodate that group of persons. The current ambiguity in the application of the definition of settled to that group will be removed and the existing rights will be maintained. This is therefore a good opportunity to clarify the law in relation to those who serve in the armed forces.

Damian Green: I thank the Minister for that explanation. The change is welcome and necessary, and I can imagine the pleasure with which he makes it, given his recent brushes with the interaction between our armed forces and our immigration law. I can see that he would like to get over this ground very lightly, and I am glad that he has done so.

Nicholas Winterton: Although he rose very positively to his feet to do it.

Question put and agreed to.

Clause 43 accordingly ordered to stand part of the Bill.

Clauses 44 and 45 ordered to stand part of the Bill.

Clause 46

Descent through the female line

Question proposed, That the clause stand part of the Bill.

Phil Woolas: It is a great shame that the hon. Member for Carshalton and Wallington has left the room, because these changes were brought about in the other place because of his arguments. [Interruption.] No, do not tell him, Sir Nicholas. We concur with the other place, again, on this point about descent through the female line, and we accept that we should right that wrong.
The change essentially brings into line the position of a certain category of person covered by the British Nationality Act 1981, whose citizenship has been passed on. At the moment there is a cut-off date of 1961, but we are righting that wrong. In short, at the moment, if one had two daughters who were born in 1959 and 1962 respectively, the younger one would have rights and the elder would not, so we are putting that right on advice from the other place.

Nicholas Winterton: I am going to use my discretion and courtesy and call the hon. Member for Carshalton and Wallington to speak.

Tom Brake: Thank you, Sir Nicholas. I can imagine what the Minister said when I was called outside, so I welcome what I believe he has said. I heard him complete his confirmation that he would address that omission. He might have given an explanation for the original omission when I was not present, but I wonder why it happened and so is having to be addressed now.

Damian Green: To add completeness to the debate, let me say that we, too, welcome the change. I am sure that many hon. Members will have had a small number of constituency cases on this issue, and that we have all wondered how this law has subsisted in this completely irrational way, under many successive Governments, for getting on for 50 years. It is incumbent on this House to pay tribute to the other House for pointing out the problem in such a strong way, and I am glad that Ministers have finally acceded to the apparently ineluctable logic.

Phil Woolas: I have asked myself the same question. I believe we would have taken the opportunity to do this in any event, but it was highlighted in the other place.
The 1981 Act was meant to limit citizenship to those with a close and continuing connection with the UK. One of the underlying principles of the Act was that an adult seeking to become a British citizen should be able to demonstrate his or her personal connection with the UK. Section 4C differed from other sections in that it allowed for registration on the basis of a mothers connection with the UK, and it was originally the Governments intention that it should be limited in its scope. On 7 February 1979, the then Home Secretary, Merlyn Rees, announced that he would exercise his discretion in favour of any child of a UK-born mother who applied for registration before his or her 18th birthday. Section 4C was intended only to cover those people who might have been unaware of the 1979 concession and did not benefit from it. Persons born before 7 February 1961 could not have benefited from the concession in any event.
My noble Friend Lord Filkin said:
British women did not acquire the right to pass on their citizenship until 1983. One can only go so far towards righting the wrongs of history before the number of what ifs to be taken into account becomes unmanageable.[Official Report, House of Lords, 31 October 2002; Vol. 640, c. 295-296.]
My view is that it is manageable. The short answer to the question is that the measure reflects changing attitudes towards women and descendancy rights from the mother as well as the fatherand, in my view, it is about time.

Question put and agreed to.

Clause 46 accordingly ordered to stand part of the Bill.

Clause 47 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned.(Steve McCabe.)

Adjourned till Tuesday 16 June at half-past Ten oclock.